Regulatory Process Matters and Notes

Regulatory Process Matters

Executive Order 12866: Regulatory Planning and Review

Congressional Review Act

This proposed rule is an economically significant regulatory action under Executive Order 12866 and has been reviewed by the Office of Management and Budget. The proposed rule is also a major rule under the Congressional Review Act. The Board has prepared a regulatory assessment for the proposed rule. The regulatory assessment has been placed in the docket and is available for public inspection. The regulatory assessment is also available on the Board's Internet site (http://www.access-board.gov/ada-aba/regimpact.htm).

The proposed rule revises and updates the accessibility guidelines for the Americans with Disabilities Act and the Architectural Barriers Act, and will ensure greater consistency and uniformity in the accessible design, construction, and alteration of buildings and facilities by the private sector, State and local governments, and the Federal government. The proposed rule is based largely on the recommendations of the ADAAG Review Advisory Committee, which consisted of representatives of the design and construction industry, the building code community, State and local governments, and people with disabilities.

The regulatory assessment examines the impact of sections of the proposed rule that establish new requirements. Requirements currently contained in existing guidelines and regulations have not been considered in the regulatory assessment. The Board used several sources as a baseline to determine the impact of sections of the proposed rule that establish new requirements. These include the American National Standard A117.1-1998 for Accessible and Usable Buildings and Facilities, a consensus standard referenced by the model codes; the new International Building Code being developed by the International Code Council which is expected to widely be adopted by State and local governments; and industry practice. The Board has worked closely with the groups responsible for developing the A117.1-1998 standard and the International Building Code to harmonize the Board's guidelines and those codes and standards. As a result, the proposed rule, the A117.1-1998 standard, and the International Building Code contain very similar provisions. For those sections of the proposed rule that are similar to the A117.1-1998 standard and the International Building Code, the Board has assumed no impact resulting from the proposed rule. Where the proposed rule differs from the A117.1-1998 standard, the International Building Code, and industry practice, the Board examined sections that are likely to have a measurable impact on the design and construction of buildings and facilities. Sections that are likely to have no or minimal impact were not included in the regulatory assessment. In all, 13 separate building elements or items were examined in the regulatory assessment. One of the items, accessible vending equipment, was determined to have no cost impact on further examination and is not included in the data summarized below.

Table 1 lists the sections of the proposed rule that are expected to have an impact, the accessible elements required, and the unit cost for each element. Where an element is expected to result in an increase in space, the amount of space increase or the average cost for a square foot of space is listed.

Table 2 summarizes data for the building types that are expected to be affected by the sections in Table 1. Four building types are included: office building, hotel, multi-family dwelling unit, and stadium/arena. Stadium/arena is further examined by the size of the facility: large, medium, and small. With the exception of the large stadium/arena, the total cost for the accessible elements as a percentage of total construction costs is one-half percent or less for the various building types. Multiplex cinemas were considered also but were determined to have no cost impact.

As shown in Table 2, the regulatory assessment sampled a variety of types of assembly facilities. However, the regulatory assessment did not include facilities that have between 300 and 11,000 seats. The Board seeks information on what types of facilities have more than 300 and fewer than 11,000 seats. In addition, how many of each type of facility is constructed each year?

None of the building types examined include TTYs or operable windows because either these elements typically are not provided in the building types; or if provided, these elements would be covered by the existing guidelines, the A 117.1-1998 standard, or the International Building Code. For instance under the existing guidelines (ADAAG 4.1.3(17)(c)(i)), public facilities are required to provide a TTY if an interior public pay phone is provided in a public use area of a building. Under the proposed rule, public facilities would have to provide a TTY on a floor when a public pay phone is provided on a floor. If public pay phones are provided in public facilities, it is assumed that they are usually located in the lobby area on the main floor and would be covered by the existing guidelines. The number of new facilities that would not otherwise be covered by the existing guidelines, the A 117.1-1998 standard, and the International Building Code and would have to provide TTYs under the proposed rule is assumed to be small. It is estimated that 50 additional TTYs would be provided annually at an aggregate cost of $99,900. The Board seeks comment on this estimate.

Table 3 presents the annual costs of the accessible elements for the various building types examined. The total costs are estimated to be $88,360,726. These costs are for new construction only. Because of the widely varying conditions in existing buildings and facilities, it is not feasible to estimate the impact of the proposed rule where alterations occur. The extent of the impact of the proposed rule on an existing building or facility undergoing alteration will depend on the existing condition of the building with regard to accessibility, the extent of the work planned, and the technical feasability of compliance.

Table 3

Annual Costs for Building Types: New Construction

Building TypeNumber of New Facilities

Costs for Accessible Elements

Office Building250

$16,397,600

Hotel890

$31,174,920

Multi-Family Dwelling Unit800

$305,600

Large Stadium/Arena3

$35,540,106

Medium Stadium/Arena5

$3,758,800

Small Stadium/Arena5

$1,183,700

All Building Types

$88,360,726

The Board has requested Federal agencies to review the impact of the proposed requirements in the Architectural Barriers Act guidelines on their leased facilities. The General Services Administration and other agencies report that they do not expect an impact on their leased facilities. The United States Postal Service (USPS) reports that it leases approximately 27,000 facilities, and of these approximately 3,000 new leases are negotiated annually for previously occupied facilities. USPS reports that it will have to provide van accessible parking spaces and accessible customer service counters, and upgrade its alarm systems when new leases are negotiated for previously occupied facilities. USPS estimates that these items will cost $10,000 per facility, or $30,000,000 annually.

The proposed rule will ensure that buildings and facilities covered by the Americans with Disabilities Act and the Architectural Barriers Act are readily accessible to and usable by people with disabilities and provide them equal opportunity to participate in and use the activities, goods, benefits, programs, and services provided therein. The proposed rule should also facilitate the certification of State and local building codes by the Attorney General. Under the Americans with Disabilities Act, State and local governments may request the Attorney General to certify State and local building codes where those codes establish accessibility requirements that meet or exceed the Federal requirements. As discussed above, the Board has worked with groups responsible for the A117.1-1998 standard and International Building Code to harmonize the guidelines and those codes and standards, which are expected to be widely adopted by State and local governments. As a result, it should be easier for State and local governments to have the Attorney General certify their building codes in the future. Architects, designers, owners, and other persons covered by the Americans with Disabilities Act also will find it easier to comply with these laws if State and local building codes are certified. Instead of having to review building and facility designs for compliance with both Federal requirements and State and local government requirements, persons can be reasonably assured that compliance with State and local requirements will satisfy Federal requirements. The Americans with Disabilities Act specifically provides that in any enforcement action, certification of a State and local building code by the Attorney General is rebuttable evidence that the code meets or exceeds Federal requirements. The proposed rule is expected to result in a greater degree of compliance with Federal requirements.

Executive Order 13132: Federalism

This proposed rule is issued to implement the Americans with Disabilities Act and the Architectural Barriers Act and will ensure that buildings and facilities covered by those laws are readily accessible to and usable by people with disabilities. Ensuring the civil rights of people with disabilities has been recognized as a responsibility of the Federal government. The Americans with Disabilities Act was enacted to provide a clear and comprehensive national mandate for the elimination of discrimination against people with disabilities. Issuance of the proposed rule is consistent with the fundamental federalism principles set forth in Executive Order 13132. The Board is required by Federal statute to develop and maintain accessibility guidelines for building and facilities to serve as a basis for uniform accessibility standards adopted by other Federal agencies. In updating and revising the guidelines, the Board has utilized an advisory committee which represented the design and construction industry, the building code community, State and local governments, and people with disabilities. In addition to requesting public comments on the proposed rule, the Board will hold public hearings to give all interested persons ample opportunity to share their views regarding the rule with the Board.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act does not apply to proposed or final rules that enforce constitutional rights of individuals or enforce any statutory rights that prohibit discrimination on the basis of race, color, sex, national origin, age, handicap, or disability. Since the proposed rule is issued under the authority of the Americans with Disabilities Act and the Architectural Barriers Act, an assessment of the rule's affects on State, local, and tribal governments, and the private sector is not required by the Unfunded Mandates Reform Act.

Regulatory Flexibility Act

The Chair, on behalf of the Board, certifies pursuant to 5 U.S.C. 605(b) that the proposed rule will not have a significant economic impact on a substantial number of small entities. As discussed above under Executive Order 12866 and the Congressional Review Act, the Board has assessed the impact of the proposed rule on various building types. The proposed rule is expected to have an impact of one-half percent or less on new construction costs for the various buildings and facilities, with the exception of a large stadium/arena which does not qualify as a small entity. These impacts are described more fully in the regulatory analyses prepared for the proposed rule. Based on this, the Board expects that the proposed rule will have an economic impact, but not a significant economic impact, on small entities and therefore a regulatory flexibility analysis has not been prepared. Nonetheless, the Board is interested in the potential impacts of the proposed rule on small entities and welcomes additional comments during the rulemaking process on issues related to such impacts.

List of Subjects

36 CFR Part 1190

Buildings and facilities, Individuals with disabilities.

36 CFR Part 1191

For the reasons stated in the preamble, under the authority of 29 U.S.C. 792(b)(3) and 42 U.S.C. 12204, the Architectural and Transportation Barriers Compliance Board proposes to amend chapter XI of Title 36 of the Code of Federal Regulations as follows:

(a) The accessibility guidelines for buildings and facilities covered by the Americans with Disabilities Act are set forth in Appendices A and C to this part. The guidelines serve as the basis for accessibility standards adopted by the Department of Justice and the Department of Transportation under the Americans with Disabilities Act.

(b) The accessibility guidelines for buildings and facilities covered by the Architectural Barriers Act are set forth in Appendices B and C to this part. The guidelines serve as the basis for accessibility standards adopted by the General Services Administration, the Department of Defense, the Department of Housing and Urban Development, and the United States Postal Service under the Architectural Barriers Act.

7. The American Council of the Blind, the American Institute of Architects, the Arc, Builders Hardware Manufacturers Association, Building Officials and Code Administrators International, Building Owners and Managers Association International, Council of American Building Officials, Disability Rights Education and Defense Fund, Eastern Paralyzed Veterans Association, International Conference of Building Officials, International Facility Management Association, Maryland Association of the Deaf, National Conference of States on Building Codes and Standards, National Easter Seal Society, National Fire Protection Association, National Institute of Building Sciences, Regional Disability and Business Technical Assistance Centers, Southern Building Code Congress International, Texas Department of Licensing and Regulation, Virginia Building and Code Officials Association, and the World Institute on Disability.

10. The ABA covers: (1) facilities constructed or altered by or on behalf of the United States; (2) facilities leased in whole or in part by the United States; (3) facilities financed in whole or in part by a grant or loan made by the United States, if such building or facility is subject to standards for design, construction, or alteration issued under authority of the law authorizing such grant or loan; and (4) facilities to be constructed under authority of the National Capital Transportation Act of 1965, or title III of the Washington Metropolitan Area Transit Regulation Compact. Notwithstanding the above, the ABA does not cover: a privately owned residential structure not leased by the Government for subsidized housing programs; or, any building or facility on a military installation designed and constructed primarily for use by military personnel without disabilities. The current ABA standard exempts various military facilities consistent with the statute (UFAS 4.1.4(2)); this exclusion has not been retained in the revised guidelines as it is more appropriately contained in the implementing regulations issued by the DOD and the other standard-setting agencies.